Is it reasonable to dismiss an Employee when evidence has been withheld from the disciplinary panel?

The Employment Appeal Tribunal (“EAT”) held it was reasonable for the Employer to dismiss the Employee although the Employer had withheld evidence from the disciplinary panel from witnesses who had seen nothing.

They dismissed the Employee’s appeal holding that ‘the ET had correctly directed itself as to the higher standard of investigation and process that might be expected given the potentially career-changing nature of the allegation against the Claimant...it had permissibly concluded that the Respondent had acted within the range of reasonable responses in taking no further action in respect of the evidence of witnesses who would not have had a direct view of the incident and who had said they had seen nothing.’Hargreaves v Manchester Grammar UKEAT/0048/18/DA

The Employee was employed as a Teacher by the Respondent Grammar School. The Employee had an unblemished record until it was alleged that he had grabbed a pupil, pushing the pupil against the wall and putting his fingers to the pupil's throat. The Employee was dismissed as a result of the incident and subsequently issued a claim for unfair dismissal in the Employment Tribunal.

The Employee’s claim for unfair dismissal was dismissed by the Employment Tribunal, who found that the Employee had been fairly dismissed by the Employer. Given the career-changing impact of the allegation leading to the Employee’s dismissal, the Employee appealed the Tribunal’s decision to the EAT, arguing the Employer's investigation was flawed in that the Employer had failed to disclose to the disciplinary panel evidence from potential witnesses who had said they didn’t witness the alleged incident. The EAT dismissed the appeal holding that the tribunal had correctly directed itself as to the higher standard of investigation that might be expected to be carried out by the Employer, given the very serious nature of the allegation and it was within the band of reasonable responses for the Employer to decide not to put to The Employee and the disciplinary panel, details about interviews with those who had seen nothing.

It did not follow that, because those individuals had seen nothing, nothing had happened. It was important to understand that the incident happened in a very noisy and crowded school corridor, such that it was possible certain witnesses in the vicinity would not have witnessed the actual incident leading to the Employee’s dismissal as it ‘took place in a matter of moments’ . The Tribunal had rightfully concluded the Employer ‘had reasonably formed the view that the evidence in question was immaterial and could not assist either the Claimant or the disciplinary panel’.

This case re-emphasises that Employers need to be able to demonstrate they have followed a fair process when disciplining an Employee and as such if certain evidence is not put before a disciplinary panel the Employer needs to be confident the panel is not being misled and is not being presented with an incomplete picture of the incident in question. Dismissal of an Employee, especially a Teacher, can have far reaching life changing consequences so the evidence put before the panel must be fairly selected.